A helpful colleague made sure that I did not overlook the fact that the US Sentencing Commission this week published here its latest quarterly data report which covers "Fiscal Year 2021 - 1st Quarter Preliminary Cumulative Data (October 1, 2020, through December 31, 2020)." These new data provide another official accounting of how COVID challenges continued to dramatically reduce the number of federal sentences imposed through the end of 2020. Specifically, as reflected in Figure 2, while the three quarters prior to COVID averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter. Figure 2 also shows that it is a steep decline in immigration cases that primarily accounts for the decrease in overall cases sentenced.
Also quite interesting is the big jump reported in these data of the number of below-guideline variances granted in the last two quarters (as detailed in Figures 3 and 4). My colleague has this to say about this data:
The overall rate of downward variances shot up recently and is staying up, while not surprisingly, the rate of within Guidelines sentences have dropped considerably. The only apparent explanation is that judges are varying downward more frequently in light of the pandemic: COVID Variances to help lower the prison population and likelihood of infection spread. Hopefully, if the Commission ever gets a quorum, it addresses the issue of infectious diseases and variances. After all, 28 USC 994(g) states that “The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.” Currently, 81 of the 193 BOP facilities are over their rated capacities making them that much more susceptible to outbreaks.
Though I certainly want to believe more federal judges are imposing lower sentences because of COVID issues in prison, other data suggest there may be more to the story. Specifically, in this quarterly report, the USSC data still show that only 8.6% of offenders received a sentence of probation (in FY 2019, the last pre-COVID year, 7.7% of offenders receive probation; in FY 2018, 8.4% did). In addition, the average sentence for drug trafficking and firearms and fraud seem largely unchanged when compared to prior years (though they have ticked down a month or two). But, if federal prosecutors during COVID are only moving forward with the most aggravated of cases, then having a few more more persons getting probation and many getting a few months less in prison may still reflect a real and consequential change in sentencing practices.
In the end, though, I think the sharp increase in variances is primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically. Immigration sentences are, generally speaking, the least likely to include a variances; drug and fraud sentences are the most likely to include a variance. Thus, when the case mix includes significantly fewer immigration cases, the overall sentenced population with have a greater percentage receiving variances. Notably, this case mix story also surely explains why Figure 5 reports that the "Average Guideline Minimum" and the "Average Sentence" have been higher the last two quarters than any time in the last five years. Immigration cases, generally speaking, have lower guideline minimums and lower average sentences; take a lot of these cases out of the overall mix, and the average for all the other cases will increase.
Ah, the joys of complicated sentencing data!
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